ANGEL RIVERA-FELICIANO, PETITIONER V. UNITED STATES OF AMERICA
No. 89-7496
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a, 59a-69a) is
reported at 876 F.2d 209. /1/
JURISDICTION
The judgment of the court of appeals was entered on May 23, 1989.
The petition for a writ of certiorari was filed on March 28, 1990, and
is therefore out of time under Rule 13.1 of the Rules of this Court.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether petitioner's prior convictions for distribution of
heroin and use of the telephone to facilitate drug trafficking barred
his subsequent prosecution in this case on charges of conspiracy and
possession of cocaine and heroin with intent to distribute them.
2. Whether petitioner is entitled to relief on his untimely
allegations (a) that the government engaged in outrageous conduct, (b)
that improper evidence was presented to the grand jury, (c) that the
trial judge misapplied the co-conspirator exception to the hearsay
rule, and (d) that petitioner was denied the effective assistance of
counsel.
STATEMENT
Following a jury trial in the United States District Court for the
District of Puerto Rico, petitioner was convicted on one count of
conspiracy to possess heroin and cocaine with intent to distribute
them, in violation of 21 U.S.C. 841(a)(1) and 846; two counts of
possession of cocaine with intent to distribute it, in violation of 21
U.S.C. 841(a)(1) and 18 U.S.C. 2; and one count of possession of
heroin with intent to distribute it, in violation of 21 U.S.C.
841(a)(1) and 18 U.S.C. 2. He was sentenced to concurrent 15-year
terms of imprisonment on each count and was fined $10,000. The court
of appeals affirmed. 876 F.2d 209.
1. The evidence at trial showed that in March 1984 co-defendants
Pedro Soto-Alvarez and Jose Panzardi arranged for three large
air-tight plastic tubes containing cocaine and heroin to be flown from
Colombia in a private airplane and dropped into the sea off the coast
of Puerto Rico. Panzardi and Soto-Alvarez retrieved the tubes from
the water and took them to Soto-Alvarez' apartment in San Juan.
Petitioner came to the apartment and helped Panzardi and Soto-Alvarez
dilute and sell the heroin and cocaine. 876 F.2d at 213; Gov't C.A.
Br. 4-7.
In 1985, Panzardi arranged a second air drop of drugs. On April 8,
two pilots hired by Panzardi flew Panzardi's airplane to Colombia,
obtained two tubes containing drugs, and dropped them into the sea off
the coast of Puerto Rico. Panzardi and two associates retrieved the
tubes and took them to San Juan. Their contents, consisting of two
kilograms of heroin, seven kilograms of cocaine and half a kilogram of
hydromorphine, were stored in Caguas, at the home of another
co-defendant, Cesar Castro. 876 F.2d at 213-214; Gov't C.A. Br. 7-9.
Panzardi contacted petitioner to help him distribute the shipment,
and gave petitioner cocaine to sell. Petitioner and Panzardi also
established a fixed location, a tavern in Bayamon, which was used as a
front for retail sales of heroin. To achieve street-level dosage, the
heroin had to be diluted with a non-narcotic substance and then
divided into smaller quantities for retail distribution. The
processing was performed at various locations, including petitioner's
house. Petitioner participated in processing the heroin. 876 F.2d at
214; Gov't C.A. Br. 13-14.
On April 18, 1985, a residence owned by petitioner was searched
pursuant to a warrant. The items seized included cocaine, cutting
agents, a scale, bags, tablespoons, strainers and other drug
paraphernalia. Gov't C.A. Br. 14.
Petitioner was charged in five counts of a twelve-count indictment
returned in 1986. The jury returned guilty verdicts on all five
counts.
2. Before being indicted in this case, petitioner had entered
guilty pleas to two counts of an indictment returned in August 1985.
Those counts charged that in April 1985 petitioner distributed 22.9
grams of heroin and used a telephone to facilitate drug trafficking,
in violation of 21 U.S.C. 841(a)(1) and 843(b). Other counts were
dismissed. See 876 F.2d at 234.
3. The court of appeals affirmed petitioner's convictions in this
case, rejecting the two grounds that petitioner advanced for reversal.
876 F.2d at 234-236. /2/
Petitioner argued in the court of appeals that convictions on two
of the counts -- which alleged, respectively, possession of cocaine
with intent to distribute it and possession of heroin with intent to
distribute it -- were barred by his prior convictions under the 19985
indictment He maintained that the heroin involved in the 1985
indictment was a part of the second shipment for which he was
prosecuted in this case and that the Double Jeopardy Clause prohibited
successive prosecutions based upon drug trafficking arising from that
shipment. The court of appeals rejected that contention. It noted
that petitioner was not contending that the offenses charged in the
two indictments were the "same" within the meaning of this Court's
decision in Blockburger v. United States, 284 U.S. 299 (1932), or
under the "same evidence" test employed in some courts. 876 F.2d at
235. The court of appeals refused to adopt the "same transaction"
test implicit in petitioner's position, noting that this Court has
never held that such a test is constitutionally required. Ibid.
(citing Garrett v. United States, 471 U.S. 773, 790 (1985) ("We have
steadfastly refused to adopt the 'single transaction' view of the
Double Jeopardy Clause.")).
ARGUMENT
1. Petitioner renews his double jeopardy contention. Pet. 15-20.
For a number of reasons, this contention does not warrant further
review.
First, as the court of appeals noted, this Court has repeatedly
declined to adopt the "same transaction" theory -- the only theory
that petitioner advanced in the court of appeals. See Grady v.
Corbin, 110 S. Ct. 2084, 2094 n.15 (1990). To the extent that the
petition now argues that other tests should be employed, those
contentions were not raised or addressed below and thus do not warrant
this Court's consideration. See Youakim v. Miller, 425 U.S. 231, 234
(1976); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970).
Second, although petitioner argues that he was convicted in the
prior case for distributing heroin that was part of the April 1985
shipment involved in this case, he has never introduced any evidence
to support that claim. Rather, he appears to rely solely upon the
fact that in the second case the government proved his receipt of
heroin and cocaine from Panzardi in April 1985 and that in the first
case the transaction on which his conviction was based occurred in
mid-April 1985. In light of evidence that petitioner was an
experienced drug dealer by April 1985, petitioner has not carried his
burden of establishing a necessary predicate for his double jeopardy
claim -- that he was convicted in 1985 of distributing the same heroin
that served as the basis for the heroin possession count in this case.
Third, the 1985 convictions are not even arguably material to most
of the counts on which petitioner was convicted in this case. At
present, two tests are employed to determine whether offenses arising
from the same act or transaction the "same offense" for purposes of
the Double Jeopardy Clause's prohibition on multiple prosecutions for
a single offense. Under Brown v. Ohio, 432 U.S. 161, 166 (1977), a
court must determine whether, based upon the statutory elements of the
two offenses, each offense requires proof of a fact that the other
does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932).
Further, under Grady v. Corbin, 110 S. Ct. at 2087, the court
inquires whether "to establish an essential element of an offense
charged in (the second) prosecution, the government will prove conduct
that constitutes an offense for which the defendant has already been
prosecuted." /3/
Under these standards, the substantive offenses to which petitioner
pleaded guilty in the first prosecution -- distributing heroin and
using a telephone to facilitate drug trafficking -- are not
conceivably the "same" as the conspiracy offense, see United States v.
Feola, 420 U.S. 671, 693 (1975); Pinkerton v. United States, 328 U.S.
640, 643-644 (1946), or the two cocaine possession offenses of which
petitioner was convicted in this case. /4/ That leaves the count
charging possession of heroin with intent to distribute it. The 1985
telephone count plainly did not charge the "same offense" as that
count; judged either by the elements of the statutes or by the proof
employed in this case, the use of a telephone was not a basis for
petitioner's conviction of possessing heroin with intent to distribute
it. Decisions by the courts of appeals have held that Congress did
not intend to authorize separate punishments for possessing a drug
with intent to distribute it and a closely related distribution of the
same drug. /5/ Necessarily, the reasoning of these cases would
prohibit successive prosecutions for distribution and possession
offenses having the requisite relationship. However, petitioner's
conviction on the possession count in this case was based on conduct
separate from his sale of heroin to an undercover agent, the basis for
his 1985 distribution conviction. Under these circumstances,
petitioner's double jeopardy contentions present no question
warranting further review.
2. Petitioner argues (a) that the government engaged in misconduct
by misleading him into pleading guilty to a relatively minor offense
and thereafter charging him with participation in a large drug
trafficking conspiracy (Pet. 20-24), (b) that the government
improperly presented evidence relating to offenses of which petitioner
had been convicted to the grand jury that returned the indictment in
this case (Pet. 24-25), (c) that the trial judge misapplied the
co-conspirator exception to the hearsay rule (Pet. 26-27), and (d)
that petitioner was denied the effective assistance of counsel at
various stages of both cases against him (Pet. 26-29). None of these
claims was raised by petitioner in the court of appeals, and none was
decided by that court. They therefore do not warrant consideration by
this Court. See Youakim v. Miller, 425 U.S. at 234; Adickes v. S.H.
Kress & Co., 398 U.S. at 147 n.2. Moreover, in the main, they involve
reformulations or extensions of petitioner's basic contention that the
second prosecution was barred by double jeopardy principles. In
addition:
a. There is no record support for petitioner's assertion that the
successive prosecutions in this case arose from government misconduct
-- as opposed to the discovery of evidence of petitioner's involvement
in a broader criminal conspiracy than was initially apparent. This is
certainly not a case in which "the conduct of law enforcement agents
(was) so outrageous that due process principles would absolutely bar
the government from invoking judicial processes to obtain a
conviction." United States v. Russell, 411 U.S. 423, 431-432 (1973).
b. With respect to the grand jury claim, petitioner has not
specified what evidence should have been withheld from the grand jury.
There is no rule requiring evidence of offenses of which a defendant
has been convicted, if material to the grand jury's investigation, to
be withheld. And, in any event, "an indictment valid on its face is
not subject to challenge on the ground that the grand jury acted on
the basis of inadequate or incompetent evidence." United States v.
Calandra, 414 U.S. 338, 345 (1974).
c. With respect to the co-conspirator exception to the hearsay
rule, petitioner fails to identify what statements should have been
excluded from evidence. We are unaware of any departure in this case
from the standards applicable to statements by co-conspirators
prescribed by the Federal Rules of Evidence and Bourjaily v. United
States, 483 U.S. 171 (1987).
d. There is no record of any specific lapse by the attorney that
represented petitioner in this case and no basis for assessing the
existence of any prejudice. See Strickland v. Washington, 466 U.S.
668, 690, 694 (1984).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
MERVYN HAMBURG
Attorney
JULY 1990
/1/ Since the appendix to the petition contains only excerpts of
the court of appeals' opinion, we will cite to the reported version.
/2/ In addition to the double jeopardy claim discussed below, the
court also rejected petitioner's contention that he had been
prejudiced by a single juror's fleeting view of him in handcuffs. 876
F.2d at 236. Petitioner does not seek further review of this issue.
/3/ The Blockburger test and, in our view, the Grady analysis are
subject to limits, particularly as applied to complex crimes involving
an extended course of conduct. See Garrett v. United States, 471 U.S.
773, 787-789 (1985) (cautioning against "ready transposition of the
'lesser included offense' principles of double jeopardy from the
classically simple situation presented in Brown to * * * multilayered
conduct, both as to time and place").
/4/ In the court of appeals, petitioner argued only that the 1985
convictions barred one of the cocaine possession counts and the heroin
possession count.
/5/ United States v. Piccolo, 723 F.2d 1234, 1241 n.2 (6th Cir.
1983) (en banc), cert. denied, 466 U.S. 970 (1984); United States v.
Ray, 731 F.2d 1361, 1368 (9th Cir. 1984); United States v. Berkowitz,
662 F.2d 1127, 1140-1142 (5th Cir. 1981); United States v. Foundas,
610 F.2d 298, 301-302, modified on other grounds, 615 F.2d 1130 (5th
Cir. 1980).